The Supreme Court's Third Shift: Policy, Precedent, and Public Opinion Via the Shadow Docket

Abstract

The Supreme Court is attracting more attention to its emergency docket – cases decided with neither briefing nor oral argument. These cases, while seemingly focused on immediate, individual problems, could potentially create policy in a way not necessarily intended or approved by Congress. Because the Court is particularly reliant on institutional support for effective policymaking and because we know that people support the Court, at least in part, due to its legalistic nature and its specific procedures, some are concerned that making decisions using this alternative, less public process as well as relying on these hastily decided cases as precedent may harm the Court’s legitimacy. Some argue it makes the Court appear more “political,” which we know to be harmful to legitimacy.Drawing on an original database of the emergency docket, as well as a pre-registered survey experiment, this project will seek to answer these questions: 1) What does the entirety of the Court's workload comprise? 2) To what extent is the Supreme Court using its emergency docket to make policy? 3) To what extent are these orders used as precedent in other cases? 4) To what extent do decisions made outside the usual procedural process affect public opinion of the Court? I hope to clarify the picture we have of Supreme Court decision making by including data from the existing Supreme Court Database and provide evidence to evaluate the impression that the Court has turned more frequently to make even more consequential decisions “in the shadows.”